Court rules blood certificate can't be used in fatal CNU crash

HAMPTON — The Virginia Court of Appeals ruled Tuesday that the blood alcohol certificate of a Newport News man charged in the deaths of two Christopher Newport University students cannot be used as evidence at trial.

In its ruling, the court said that because Jesse Evans Jr. was not placed under arrest within three hours — a requirement under Virginia's implied consent law for DUI-related blood tests — it cannot be admitted as evidence in his trial. Evans, 34, is charged in the deaths of Kimberley Brin, 17, and 19-year-old Sierra Smith. The girls were traveling west on Interstate 64 when their car was struck head-on by Evans on Dec. 4, 2011, according to police.

The decision comes almost two months after Hampton Circuit Judge Wilford Taylor ruled that the certificate couldn't be admitted after granting a motion by Evans' defense attorneys. Attorneys Ron Smith and Matt Ballard argued that the certificate of analysis for Evans' blood shouldn't be used because of the amount of time it took state police to arrest Evans.

"We're pleased," Ballard said. "We think the court made the right decision."

Prosecutors will be able to present Evans' blood-alcohol level at trial through witness testimony, just not the actual certificate.

State Police Trooper B.L. Stokes testified in November that she told Evans that he was under arrest for DUI while he was still inside his car at the scene. Stokes said she arrested Evans after he told her he had one beer and she smelled "a strong odor of alcohol" in his car.

Evans, a Fort Eustis soldier, was first charged with involuntary manslaughter in January 2012. Evans was not charged with DUI until a grand jury indicted him in August 2012.

"Although at the scene of the collision Stokes told appellee that he was under arrest, she did not physically restrain him," the court wrote. "Nor could Stokes' conduct at the hospital be construed as constraining appellee's personal liberty. After obtaining the blood samples, Stokes left appellee at the hospital and did not issue him a summons."

Prosecutors expressed disappointment with the ruling.

"Of course we are disappointed by their decision. We wished they ruled differently," said Karen Rucker, chief deputy commonwealth's attorney. "However, we respect their decision and will move forward with prosecution."

Ballard and Smith based their argument on the Virginia Supreme Court's 2006 decision in Bristol v. Commonwealth. The court ruled that the Portsmouth man's DUI arrest was not valid in part because agreeing to a blood test did not automatically mean he was surrendering his rights.

Evans is charged with two counts of involuntary manslaughter, three counts of maiming by DUI and a charge of having two DUIs within five years.

Evans' blood-alcohol level the morning of the crash was 0.21 — nearly three times the Virginia limit of 0.08, according to a certificate of analysis from the Department of Forensic Science. This was the fourth time Evans had been charged with DUI since 2004.

"We hope other evidence during the trial will be enough," said Albert Brin, Kimberley Brin's father. "This guy killed two people and he expects to walk."